ocr shift in harm to self rules has student affairs officials worried

Submitted by Allie Grasgreen on December 6, 2011 - 3:00am

Most colleges force a student to take medical leave only as a last resort when responding to a student who is at risk of harming him- or herself. But in some cases, many student affairs officials say, it’s the best option.

In a case at the former institution of one student affairs official, an international student who cut herself regularly repeatedly threatened self-harm. Despite having virtually no personal support system on campus or anywhere nearby, she refused to leave – essentially placing her freshman roommate on suicide watch. Certain that the student needed to seek treatment, but hesitant to put her through a code of conduct hearing -- which could have made clear her disruption of the academic environment, but also exposed her private situation -- the college opted to send her home until she could receive proper medical care and was fit to return to campus. (The official asked not to be named to protect the student's privacy.)

But a recent revision of a Justice Department regulation has many professionals worried that they can no longer take such steps to protect students who may be a threat to themselves. The revised “direct threat” regulation under Title II of the Americans with Disabilities Act is also causing confusion.

Guidance handed down over years from the Department of Education’s Office for Civil Rights has long been read to give colleges the leeway to remove a student who threatens his or her own safety -- without violating the laws that protect the rights of people with disabilities. But the new DOJ interpretation is causing uncertainty because, while it makes clear that colleges are allowed to dismiss a student who poses a direct threat to the health or safety of others, it does not explicitly address what institutions can do when the student’s potential harm is directed only at him- or herself. (The National Association of College and University Attorneys published interpretation and advice[1].)

Whereas Title II regulations used to include language addressing harm to self and to others, the new provision, which took effect March 15, defines direct threat as: "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services."

For now, colleges are hoping for more guidance from OCR, which will likely come in the form of decision letters to institutions investigated for possible violations of the law. One such decision[2], handed down in late October, said Spring Arbor University violated the civil rights of a student with a mental health disability who withdrew voluntarily. (The regulatory shift wasn't on the radar of many officials until this letter came down.) The action with which OCR took issue was the university’s placing certain stipulations on the student’s return to campus (a common requirement is a mental health clearance indicating that a student is fit to return; a similar clearance could be required for a student who leaves for reasons related to physical health, such as mononucleosis).

Brett A. Sokolow, managing partner for the National Center for Higher Education Risk Management, wrote on his blog that while no individual decision letter is precedent-setting, colleges must recognize now that placing return conditions on students with disabilities can be discriminatory.

“OCR decisions we all know well,” he wrote, “can no longer be considered good law or representative of OCR’s future enforcement standards. As applied to both public and private institutions, as of August 2011, the direct threat test has been limited in its application to harm to others, only.”

In other words, Sokolow said, DOJ is instructing colleges to retain self-harmful students until they either present a harm to others or disrupt the educational environment.

In an interview, Sokolow said his clients frequently bring up this topic in conversation, feeling that “some of the most potent tools” of their carefully developed policies and procedures have been restricted.

“What I think this means is something of a paralysis for colleges and universities who are trying to navigate between the civil rights of individuals with disabilities and the need to protect the community from students who may be at risk of harm to self or harm to others. We’re not sure what the best approach may be, and it may be that the best thing to protect the community and its members may be to violate federal law,” Sokolow said. “I think we’re in a limbo period where we’re waiting for more guidance, but there aren’t a lot of answers coming.”

Sokolow and other experts said they understand where the DOJ is coming from on the issue – with a desire to protect vulnerable students who, at times, may be kicked off a campus simply because the college doesn’t want to deal with them (officials say this is rare, but not unheard of). Some students over the years have also won discrimination lawsuits against colleges that sent them away.

One was Jordan Nott[3], a former George Washington University student who sued when he was suspended after seeking psychiatric help at GW Hospital. At the time, Nott was taking antidepressants prescribed by the counseling center but said he was not suicidal. Nott's lawyers sued under ADA, arguing discrimination; GW said Nott had violated the student conduct code with “behavior of any kind that imperils or jeopardizes the health or safety of any person or persons.” The two settled in October 2005; the terms are confidential.

One of Nott's lawyers, Karen Bower, often defends students with mental health issues. While she too is unsure about the full extent of the ADA revision's implications, the restriction is a good thing, she said. In many cases, she said, biases cause colleges overreact to a student's expression of suicidal thoughts or admission to a hospital.

"Oftentimes, those students are able to stay on campus and succeed with appropriate support and with appropriate accommodations. And so I look at this as encouraging the colleges and universities that their decision should not be made based on prejudices, stereotypes and fear of people with mental illness, and schools should be focused on providing support and accommodations so students can stay on campus and succeed," Bower said. She added that colleges can also remove "barriers to voluntary leave of absence," such as waiving deadlines by which students must withdraw to still receive tuition refunds, and policies that don't allow students to return and finish a class later.

"There's something protective, there's something positive about the campus environment for students," Bower said, noting data[4] indicating that college students commit suicide at rates half those of their same-age, non-college-going peers. "Students who might exhibit self-injurious thoughts or actions that can safely stay in school should not be removed solely because they might be considered by the school a direct threat to themselves. And I think a focus on accommodations, and looking to see how students can succeed, is a positive thing."

Donn Marshall, associate dean at the University of Puget Sound, can appreciate the DOJ’s intentions. He has long believed that persuasion – which is likely now the only method colleges can use to get self-harmful students to leave – is the most powerful tool to help students get better. But he still worries that the rule has left colleges wondering how best to help students who are so impaired that they’re not capable of making good decisions for themselves, or for others.

“I don’t know that [DOJ and OCR] can understand what it’s like on the ground here, when a student is really wrecking the academic performance of a half-dozen peers who feel like they have to sit at the bedside of a troubled student 24/7,” Marshall said. “And yet this ruling means that as an institution, we can’t step in in as vigorous a way as we thought we could before to protect those caring friends.

“I think it only took on part of the problem,” he said, “and left us to deal with the messy pieces.”

And the “significant departure” from OCR’s previous position is causing concern at many institutions, said John Wesley Lowery, associate professor of higher education at Indiana University of Pennsylvania, even though the involuntary leave is a last resort in most places.

“It is, in my sense, on those campuses exceptionally rare, except for the largest of institutions that also have very large residential populations,” Lowery said. “It is in a residential environment that often the troubling behaviors that bring a student to the institution’s attention happen.”

Even so, the OCR shift has come up every time a gathering of senior student affairs officers takes place, said Rebecca Mills, dean of students at Touro University Nevada and chair of the public policy division of NASPA: Student Affairs Administrators in Higher Education.

“It’s very complex, and I think much more complex than folks who don’t deal with those circumstances on a somewhat regular basis appreciate,” Mills said. “Bottom line, many of our most confounding issues on campuses relate to threats of harm to self. As student affairs practitioners, we work to ensure that all students have the opportunity to be successful and to have access to support services when they struggle. However, there are times when threats of harm-to-self become quite disruptive to the educational environment. In those cases, I would prefer an option outside of the judicial process.”

Many officials reported re-evaluating their policies to ensure they’re in line with the new interpretation. Even without additional OCR guidance, some guidelines have developed over time that colleges would be wise to consider. According to NACUA, colleges’ policies should: focus on conduct, not disability; ensure that students receive individualized assessments; ensure consideration of “reasonable accommodations,” such as removal from campus housing if a student is threatening only in a dorm; and ensure due process for students.

Greg Eells, director of counseling and psychological services at Cornell University, knows those guidelines well, and he said his staff will continue to follow them while awaiting further news. But that won’t remedy the feeling emerging in many health professionals who have this on their radar.

“I would say if there was one word to summarize, it would be confused,” Eells said. “We’re going to wait and see. I think it’s not any college or university’s goal to remove a student. All of us do this work because we’re dedicated to helping the students succeed…. The real goal, I think, is hopefully getting students connected with resources to hopefully help them succeed.”

Western Washington University’s policies have been reviewed by officials from all sides – legal, risk, police, disability. The attorney’s “O.K.” helped alleviate some of the anxiety among staff there, said Sherry L. Mallory, associate dean of students at Western Washington. Even so, she hasn’t had to invoke the involuntary withdrawal policy yet: “I would say almost always, that they will voluntarily withdraw and take time away, just to focus on getting better.”